Commentary on chapter 6: Enhancing the legitimacy of EU tax policy and law

The legitimacy of European Union policy and tax law regards the tax policy decision-making process and the ensuing tax regulations. The enforcement, application and adjudication of EU tax law may also add to its legitimacy. In this paper, the focus is mainly on the legitimacy of tax legislation. To understand the need for and different aspects of the legitimacy of tax legislation a brief historical overview may be useful. Important factors and values thus discovered are intrinsically linked to legitimate taxation: (representative) democracy, the rule of law, accountability, public spheres, participation of citizens, civil society, transparency and publicity. They are all mainly developed in the context of nation states and must be translated to the European Union. After a historical flashback the implications of these ideas are explored in the context of EU taxation. The research question of this contribution is therefore: how may crucial ideas and values such as democracy, the rule of law, accountability, public spheres, citizen participation, civil society, transparency and publicity be incorporated into EU tax policy and law in order to enhance its legitimacy?
Democratic legitimacy is the starting point when assessing the legitimacy of the state tax policy and law. Unfortunately, in the European Union democratic legitimacy is not that strong. Therefore, the next focus will be on legal legitimacy, requesting conformity to the rule of law, as a possible compensatory form of legitimacy. However, democratic legitimacy itself might also be improved by engaging civil society (input legitimacy). Moreover, there may still be room for evaluation of EU tax policy and law from another perspective, since both democratic and legal legitimacy do not regard the capacity of the EU tax policy and law in order to respond efficiently and effectively to the expectations, interests, and needs of the citizens (output legitimacy).
These old and new forms of legitimacy will be connected to other important values with regard to taxation, namely participation and consultation, the involvement of civil society, accountability, transparency, and publicity. They may help to enhance ‘government by the people’ and to improve the quality and social acceptance of EU tax policy and law. The structure of this paper thus follows these themes subsequently.
The topic of this contribution is situated at the crossroads of several academic disciplines such as tax law, legal theory, the history of ideas (‘Begriffsgeschichte’) political theory and governance theory. This calls for a methodology which connects these disciplines by drawing on literature from these different disciplinary sources. This has to be done with respect for the different disciplinary traditions, methods and concepts. For example, the same word may have different meanings in different disciplines.
The theoretical relevance of this paper lies primarily in embedding the EU tax debate in the discussion on these important values in the literature on EU law and governance. With regard to practical relevance, the theoretical insights gained will also be elaborated in some elements that can be put into practice when engaging civil society by way of consultation